SUPERIOR COURT OF NEW JERSE Y APPELLATE DIVISION DOCKET NO . A

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v. NEW JERSEY STATE PAROLE BOARD, Respondent.

____________________

Submitted February 4, 2020

– Decided March 16, 2020 Before Judges Yannotti and Currier. On appeal from the New Jersey State Parole Board. Joseph Presher, appellant pro se. Gurbir S. Grewal, Attorney General, attorney f or respondent (Sookie Bae, Assistant Attorney General, of counsel; Suzanne Marie Davies, Deputy Attorney General, on the brief).
PER CURIAM NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This op inion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36

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Joseph Presher appeals from a final determination of the New Jersey State Parole Board (Board), which denied his application for parole and establ ished a ninety

- six

- month future eligibility term (FET). We affirm.
I. On Ju ne 22 , 19 88 , at around 7:50 a.m., police in the Borough of Franklin, Sussex County, responded to a report of a woman who had been found dead in her home. The police found that the woman's wrists had been bound and a sock wrapped around her throat. She had been strangled, beaten, and stabbed six times in the chest. The police observed that a n inver ted crucifix, wrapped with a pair of rosary be ads and a piece of palm, had been placed over the victim's vagina. The y found a bloody kitchen knife on a towel near the victim's head. A clock radio was lying on the floor between the victim's head a nd a nig ht table. A telephone also had been knocked t o the floor. The investigating officers spoke with the victim's husband, who said he had no idea how his wife died. He said that when he left for work in the morning, she was alive. At around 8:00 a.m., th e victim's husband received a call from his so n, who told him to return home because the victim was dead. The officers questioned several men who worked with the victim's husband, including3 A

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Presher. T hese men would regularly meet the victim's husband at his home in the morning and drive together to work. Presher agreed to provide a statement to the investigat ing officers

. He said that on the morning of June 22, 1988, he went to the victim's residence to get a ride to work. He claimed he entered the house and saw the victim's husband stab the vi ctim repeatedly

. The officers told Presher that , based on his statement, they were going to arrest the victim's husband

. They asked Presher if he wanted
to tell the victim's husband to his face that he saw hi m murdering his wife. Presher broke down an d later provided a statement to the investigators. He said that on the morning o f June 22, 1988, he went to the victim's house and waited for her husband to leave. He entered the victim's bedroom as she slept and placed his hand over her mouth. Presher said the victim struggled . He tried to speak with her, but she would not listen to him. Presher tied the victim to her bed, went downstairs to the kitchen , and retrieved a knife. He went upstairs and again tried to speak with the victim. She still wo uld not listen to him. He said he became furious, grabbed the telephone cord and tried to strangle her. He retrieved a towel from the bathroom, wrapped his hand in the towel, and stabbed her with th e knife

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Presher said he remembered rifling through t he dresser and drawers in the bedroom and living room. He next remembered running through the woods to
retur n home. He took a shower and went by bus to his uncle's gas station , where he remained all day helping his uncle. Later, Presher's aunt and uncle drove him home, where the police were wai t ing to question him about the victim's death. After he recounte d the details of the murder, Presher provided further information to the investigating officers. He stated that he had a romantic relationship wit h the victim over a six

- month period, but the relationship ended when he was incarcerated as a result of his conviction on burglary and theft charges. Presher said that w hen he was released from jail, he lived with another woman, but that relationship e nded. Presher then tried to re

- establish his relationship with the victim; however, she was not interested. She said she wanted to remain with her husband. Presher s tated that a week before the murder , he discovered the victim had be e n "screwing around" with men other than her husband. On October 27, 1988, a Sussex County grand jury charged Presher with murd er, felony murder, burglary, and possession of a weapon for an unlawful
purpose. Thereafter, Presher ple d guilty to murder and possession of a wea pon5 A

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for an unlawful purpose. On February 2, 1990, the court merged the offenses, and sentenced Presher to li fe imprisonment, with thirty years of parole ineligibility. Presher first became eligible for parole on July 1, 2018. A hearing officer conducte d a hearing on March 15, 2018 . The hearing officer referred the matter
to a two

- member Board panel for further proceedings

. The two

- member panel issued a notice of decision dated April 10, 2018, denying parole. The panel found there was a substantial likelihood Presher would commit a new crime if released on parole at this time. The panel referred the matter to a three

- member panel to establish a FET outside the administrative guidelines. N.J.A.C. 10A:71

- 3.21(d )

. On August 1, 2018, the three

- member panel established a ninety

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month FET. In its notice of decision, the panel noted the reasons for establishing a FET outside the guidelines. Presher filed an administrative appeal to the full Board. The Boar d issued its final decision on April 24, 2019 , affirming the denial of parole and the ninety

six

- month FET. This appeal followed.6 A

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- 18T2 II. Presher argues that the Board erred by denying his application for parole. He contends there were insufficient groun ds to deny parole. "The Parole Board ha s broad but not unlimited discretionary powers in reviewing an inmate's record and rendering a release decision." McGowan v. N.J. State Parole Bd. , 347 N.J. Super. 544, 563 (App. Div. 2002). "To a greater degree th an is the case with other administrative agencies, the Parole Board's decision

- making function involves individualized discretionary appraisals." Trantino v. N.J. State Parole Bd. , 166 N.J. 113, 201 (2001) ( Trantino V ). Thus, the scope of appellate revie w of the Parole Board's decision is "lim ited." Hare v. N.J. State Parole Bd. , 368 N.J. Super. 175, 179 (App. Div. 2004). "Judicial review of the Parole Board's decisions is guided by the arbitrary and capricious standard that constrains other administra tive action." Acoli v. N.J. State Parol e Bd. , 224 N.J 213, 222

- 23 (2016). Accordingly, the Board's decisions should be reversed "only if they are arbitrary and capricious." Trantino V , 166 N.J. at 201. We must uphold the Board's factual findings if the y "could reasonably have been reached on sufficient credible evidence in the whole record." Trantino v. N.J. State Parole Bd. , 154 N.J. 19, 24 (1998)7 A

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( Trantino IV ) (quoting N.J. State Parole Bd. v. Cestari , 224 N.J. Super. 534, 547 (App. Div. 1988)).
In r eviewing the Board's denial of parole, w e consider the following : (1) whether the agency's action violates express or implied legislative policies, i.e., did the agency follow the law; (2) whether the record contains substantial evidence to support the fi ndings on which the agency based its act ion; and (3) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors. [ Ibid. ] On a ppeal, Presher argues that the Board sho uld have granted his application for parole. He asserts that he has had only four institutional infractions over a thirty

- year period and "[i]t is a rare inmate who has a clean disciplinary history." He also claims he has attempted to receive mental heal th and substance abuse treatment while imprisoned, but has, at times, been deemed ineligible. He asserts the Board erred by not consider ing his age as a mitigating factor. Presher also asserts that he has completed over 11,250 hours of job training whil e imprisoned and has acted as a teacher's aide

. He contends he has an adequate parole plan. He contends he provided an " acceptable " address to8 A

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the Board and he should be placed in a "halfway" p rogram to ease his transition into " normal life. " "Parole for a conviction imposed on offenses committed before August 18, 1997, 'is governed by the standard[s] in N.J.S.A. 30:4

- 123.53(a) and 30:4

- 123.56(c) prior to the amendment of those statutes on th at date.'" Perry v. N.J. State Parole Bd. , 459 N.J. Super. 1 86, 194 (App. Div. 2019) (quoting Williams v. N.J. State Parole Bd. , 336 N.J. Super. 1, 7 (App. Div. 2000)). The pre

amendment statute states, in relevant part:

An adult inmate shall be release d on parole at the time of parole eligibility, unless informa tion supplied in the report filed

. . . or developed or produced at a hearing . . . indicates by a preponderance of the evidence that there is a substantial likelihood that the inmate will com mit a crime . . . if released on parole at such time. [N.J .S.A. 30:4

- 123.53(a) (1979).] The statute " effectively establishes a presumption in favor of parole." In

re Parole Application of Trantino , 89 N.J. 347, 355

- 56 (1982). Therefore, the burden is on the State to establish that there is a substantial likel ihood the inmate will commit a crime if released on parole at such time. See Trantino V , 166 N.J. at 197. The Board's determination of parol e eligibility must be "based on the aggregate of all pertinent" evidence, including twenty

- three enumerated, but9 A

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no n - exhaustive, factors. N.J.A.C. 10A:71

- 3.11(a) to (b). There is, however, no requirement that the Board consider each of the enumerated fac tors ; rather, the Board should consider those "applicable in each case." McGowan , 347 N.J. Super. at 561.
Here , t he two

- member panel found several mitigating factors. The panel noted that Presher had participated in institutional programs and programs

s pecific to his behavior. The panel sta ted that institutional reports "reflect institutional adjustment." Presher also had attempted to enroll and participate in certain programs, but he had not be en admitted. In addition, he had achieved and maintained minimum

- custody status, 1 and commutation time had been restored. The panel found, however, that parole should be denied. The panel identified the following reasons for its decision: (1) the facts and circumstances of the offense; (2) Presher's prior offense record is extensive; (3) his offense record is repetitive; (4) the nature of Presher's criminal offenses had become increasingly more serious; (5) he is incarcerated for multiple offenses; (6) he

1 Acco rding to the administrative code, " [i]nmates classified as 'full m inimum custody status ' are" those inmates that are assigned to: "work details, jobs or programs outside the main correctional facility . . . , with minimal supervision; and/or . . . [a] sate llite unit or minimum security unit. " N.J.A.C. 10A:9

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committed new offenses while on probation; (7) prior opportunities for probation failed to deter further criminal behavior ; (8) he violated the conditions of probation; (9) he committed numerous institutional infractions, which were serious in nature and the last infraction occurred on March 17, 1992; and (10) he had insufficient problem resolution, including a lack of insigh t into his criminal behavior and a failure to s ufficiently address his substance abuse problem. The panel stated that Presher "continues to demonstrate a lack of ability to understand and address his criminal thinking and substance abuse issues which we re at the root of his commitment offenses. Des pite programming[,] he still demonstrates a lack of tools to address his thinking and behaviors while on supervision." The panel also stated that Presher did not have an adequate parole plan, an d considered h is risk assessment evaluation. On April 25, 20 18, the panel amended its notice of decision to add another reason for denying parole, specifically that Presher's opportunity for probation had been terminated because he committed new offenses. In additio n, t he panel noted that after thirty years of i ncarceration, Presher had not demonstrated an adequate understanding of his negative behavioral choices that have affected his behavior since he was a juvenile. The panel found11 A

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that Presher has not made suffi cient rehabilitative progress with respect to a significant aspect of his criminal behavior. The panel observed that Presher began to abuse alcohol and drugs at a young age and this was a factor in his "criminality." The panel found that Presher did no t have an understanding of his addiction and la cked "adequate drive" to understand it. He presented as "unmotivated to fully prepare [him ] self to address this factor in preparation for potential release." The panel further stated that a dditional "work a nd effort" was needed "to address these [] defic iencies

. . . ." In addition, the panel took note of Presher's institutional infractions, which included an attempt or plan to escape for which he had been sanctioned with administrative segregation and the l oss of 300 days of commutation credits. In it s decision, the Board noted that while Presher has served sufficient time to satisfy the punitive aspects of his sentence, this does not mean he is eligible for parole. The Board found , that in denying parole , the panel had "appropriately determined that [Presher] exhibit[s] insufficient problem resolution, specifically, that [he] lack[s] insight into [his] criminal behavior and [his] substance abuse problem has not been sufficiently addressed. " The Board12 A

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add ed that although Presher "ha[s] been involved i n treatment, [he ] ha [ s] gained little insight from these programs." The Board also found that Presher had made "some progress," but his criminal behavior is deeply rooted

. The Board pointed out that Presher 's "extensive" criminal record extends back to 1984, and he has also committed numerous institutional infractions. The Board noted that Presher has a "very limited employment history and an extensive poly

- substance abuse history" beginning at age eleven. The Board agreed with the panel's finding that there is a "substantial likelihood" Presher would commit another crime if released on parole. We are convinced the Board's decision to deny parole was "based on the aggregate of all pertinent" evidence, in cluding the applicable mitigating factors noted in its decis ion

. N.J.A.C. 10A:71

- 3.11(a) to (b). There is sufficient credible evidence in the record to support the Board's findings , and the Board's decision was not arbitrary, capricious or unreasonable.
I I I. Presher argues that the Board erred by establishing a ninety

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- month
FET. He notes that the presumptive FET is twenty

- seven months. He states "[w]hat does the Board expect [him] to accomplish [in] that period of time that13 A

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he could not accomplish in a lesser amount of time ? " He asserts that , because he is fifty

- one years old , the FET is akin to a death sentence.
N.J.A.C. 10A:71

- 3.21(a)(1) establishes a presumptive FET of twenty

seven months for an individual convicted of murder serving a sentence greater than fourteen years. N.J.A.C. 10A :71

- 3.21(d) further provides that a three

member panel may establish a different FET if the presumptive FET "is clearly inappropriate due to the inmate's lack of satisfactory progress in reducing the likelihood of future criminal behavior." In making that determination, the panel "shall consider the factors enumerated in N.J.A.C. 10A:71

- 3.11." N.J.A.C.
10A:71

- 3.21(d). Here, the three

- member panel identified the reasons for the imposition of the ninety

- six

- month FET and concluded that Presher "remain[s] a threat to public safety." The panel found that Presher does not sufficiently understand the "negative behavioral choices" he has made from a young age. The panel pointed out that Presher has n ot made sufficient progress in the rehabilitative
process reg arding his criminal behavior. The panel also noted that Presher did not have an understanding of his substance abuse problem and "lack[s] adequate drive" to further understand it.
Th e panel s tated that Presher has committed serious institutional infrac tions,14 A

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which include attempted or planned escape. The Board concurred with the three

- member panel's reasoning and decision. We reject Presher's contention that because he is fifty

- one years o ld, the FET is tantamount to a "death sentence." As the thre e - member panel noted in its decision, the FET will be reduced by commutation, work, and minimum custody credits. H is projected parole eligibility date is in June 2023. We are constrained to poi nt out that Presher was sentenced to life imprisonment. Ther e is no assurance he will meet the standard for parole when he next becomes eligible for parole. We are convinced that in establishing the FET, the Board applied the correct legal standard and considered the factors identified in N.J.A.C. 10A:71

- 3.11. W e conclude there is sufficient credible evidence in the record to support the Board's findings of fact and the ninety

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- month FET is not arbitrary, capricious or unreasonable.
I V

. Presher further argues that we should not follow Acoli

. He contends we should order his release on parole, instead of remanding the matter to the Board for further proceedings. He contends remanding this case would allow the Board to "ignore the [c]ourt and get a second bite at the release apple[,]" and liken s15 A

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such a proces s to a violation of the constitutional prohibition against double jeopardy.
In Acoli , the Board previously had denied Acoli 's application for parole twice . 224 N.J. at 216. On his third application, the two

- member panel again denied par ole, and the th ree - member panel established a 120

- month FET. Id. at 218. Acoli filed an administrative appeal, and the Board considered the record developed by the hearing officer and panels but did not conduct a full hearing

. Ibid. The Board again den ied parole and Acoli appealed. Id. at 21 9

. In an unpublished opinion, we ordered the Board to "expeditiously set conditions for

. . . parole" and declined to remand the matter to the Board. I bi d. The Supreme Court granted the Board's petition for cert ification, and the Board argued that this court erred by ordering Acoli's parole rather than a hearing before the full Board, pursuant to N.J.S.A. 30:4

- 123.55(f)

. Ibid. The Court agreed and remanded the matter to the Board for a n evidentiary hearing and determination a s to the inmate's " suitability for parole release." Id. at 232. In this case, we have determined that there is sufficient credible evidence in the record for the Board's findings of fact and that the Board's decision to deny parole and e stablish a nine ty

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- month FET is not arbitrary, capricious, or unreasonable. The Board's procedures complied with the applicable statutes, as16 A

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interpreted in Acoli

. There is no reason to remand the matter to the Board for further proceedings. Affirmed.